Opinion
6 Div. 120.
October 28, 1920.
Appeal from the Circuit Court, Jefferson County; Romain Boyd, Judge.
Weatherly, Deedmeyer Birch, of Birmingham, for appellant.
Tortious conduct of defendant's agent and Mrs. Peck, in bringing about the delivery of the goods without the payment of the draft, was such a conversion as entitled the plaintiff immediately to rescind the contract with Mrs. Peck and resume possession of the property, or sue the carrier or Mrs. Peck for the conversion. 172 Ala. 645, 55 So. 206; 141 Ala. 671, 37 So. 659; 77 Ala. 236; 84 Ala. 173, 4 So. 356; 6 Ala. App. 478, 60 So. 598; 6 A. E. Ency. 462, 466, and note; 55 N.J. Law, 320, 26 A. 907, 22 L.R.A. 415, 22 L.R.A. 415, and note; 10 C. J. 347. This doctrine applies in all cases where possession and control is wrongfully obtained from the true owner. Authority supra. In a case of this kind, the consignor may recover the whole damage. 10 C. J. 348, 350, 354. The recovery is always the value of the goods. 20 Ala. 694; 27 Ala. 468; 20 Ala. 587. Plea 4 is not allowable in actions of this sort. 202 Ala. 263, 80 So. 101; 57 Ala. 521; 57 Ala. 588.
Stokely, Scrivner Dominick, of Birmingham, for appellee.
In this action, plaintiff can recover no more than the value of his special interest in the property converted. 110 Ala. 438, 18 So. 312; 109 Ala. 154, 19 So. 505; 130 Ala. 430, 30 So. 504; 147 Ala. 660, 41 So. 954; 198 Ala. 162, 73 So. 451.
While it is a well-settled legal principle that one who has a special as well as a general interest or title to personal property can maintain trover for the conversion of same, it is also settled that one who has a special interest can only recover the value of his special interest in the property. McGowen v. Young, 2 Stew. P. 160; Zimmerman v. Dunn, 151 Ala. 438, 44 So. 533. Especially does this rule apply to those plaintiffs in trover who sue for a general conversion and who merely hold a mortgage or lien upon the property converted. Seibold v. Rodgers, 110 Ala. 438, 18 So. 312; Ryan v. Young, 147 Ala. 660, 41 So. 954. The defendant's special plea 4 negatives any general interest or title of the plaintiff in or to the property, and sets up a state of facts showing that the gravamen of its action was the delivery to the consignee of certain goods before the payment of a draft for $54 covering certain shipping charges, freight, etc. In other words, the wrong complained of was not in the conversion of plaintiff's property, but in delivering certain property to the rightful consignee prior to the payment of said draft covering the shipping charges. Had the $54 been paid before the delivery of the goods to E. Peck, the plaintiff, under the facts disclosed by the pleading, would have no right of action against this defendant. Therefore the plaintiff's special interest in the property claimed to have been converted is analogous to that of a lienee or mortgagee, and the measure of recovery should be confined to the $54 with interest from the time of the alleged conversion.
The defendant's plea 4, however, purporting to be one of tender, should have averred that the $54 offered the plaintiff was tendered immediately after the delivery of the goods, or else should have included interest in said sum from the time of the alleged conversion up to the time of the offer. The plea does aver that the full amount due "to wit, $54," was tendered the plaintiff before the suit was brought, but it may have been tendered the day before the suit was brought; and, unless it was tendered contemporaneous with or immediately after the conversion, it could not be and was not the full amount due as confessed to be due in the former part of the plea. The trial court, therefore, erred in not sustaining the plaintiff's first ground of demurrer to defendant's special plea 4.
The judgment of the circuit court is reversed, the judgment of nonsuit is set aside, the cause is reinstated and remanded.
Reversed and remanded.
SAYRE, GARDNER, and BROWN, JJ., concur.